one judgment, and whether one judgment could exceed the maximum punishment for a single offense, open for further consideration. United States v. Maguire,* 3 Cent. L. J., 273. §3092. Section 5467 of the Revised Statutes, having intended to make the act of taking a sack from the mail, and abstracting its contents, two separate and distinct offenses, although done by the same person and at the same time, the court will take this fact into consideration in fixing the punishment of one convicted of both offenses, and will impose the punishment incurred by each. United States v. Harmison,* 3 Saw., 556.

§3093. An indictment charged in the first count that the defendant broke into a certain postoffice to commit larceny; in the second, that he stole a letter therefrom containing $750; in the third, that he broke into another postoffice to commit larceny; and in the fourth, that he stole therefrom letters containing $157. The defendant pleaded guilty generally, and was sentenced to imprisonment for two years on each count, one term commencing at the expiration of another. At the end of two years he applied for a discharge on habeas corpus, on the ground that the court could not pass cumulative sentences. Held, that having failed to object to the joinder of offenses in the indictment, and as the indictment set forth two offenses at least, the sentence was at least good for four years. In re Peters,* 4 Dill., 169.

$3094. Assault - Standing of parties.-In fixing the punishment upon a conviction for assault and battery, the court may consider the station in life of the parties. United States v. Houston,* 4 Cr. C. C., 261.

§ 3005. Mitigating circumstances.- Where the court has a discretion as to the extent of punishment to be inflicted on a party, it may hear evidence of any circumstances which may properly be taken into view, either in mitigation or aggravation of such punishment. United States v. Harmison,* 3 Saw., 556.

§ 3096. Capital punishment.-The eighth section of the act of 1790, providing that if any person or persons shall commit upon the high seas, or in any river, haven, basin or bay, out of the jurisdiction of any particular state, murder or robbery, such offender shall be deemed a pirate and a felon and shall suffer death, does not include those offenses, when committed in the Indian country attached to the state of Missouri. Nor is such Indian country within the exclusive jurisdiction of the United States. Robbery, therefore, when committed in such Indian country is not punishable with death, but as larceny only. Charge to Grand Jury,* 1 West. L. J., 245. See § 3056.

$3097. Offenses in places ceded to United States.-The act of March 3, 1825, which provides "that if any offense shall be committed in any of the places aforesaid (referring to places ceded to the United States), the punishment of which offense is not specially provided for by any law of the United States, such offense shall, upon conviction in any court of the United States having cognizance thereof, be liable to, and receive, the same punishment as the laws of the state in which such fort, dock-yard, or other place ceded as aforesaid

is situated provide for the like offense, when committed within the body of any county of such state," must be restricted to such places as were ceded to the United States at or before that time. United States v. Barney,* 5 Blatch., 294.

3098. At hard labor - Modified. A person having been sentenced to imprisonment at hard labor in a case in which the statute simply provided that the offense should be punished by imprisonment, the supreme court, on writ of error, ordered the sentence set aside and a new sentence pronounced in conformity to the statute. Reynolds v. United States, 8 Otto, 145 (§§ 854-865). See § 3060.

§ 3099. Province of jury. It is error to refuse to allow the jury to fix the punishment, under the act of December, 1871, of Wyoming Territory, providing that when the punishment of any crime is discretionary as to amount or extent, the jury may determine the same. This act is not contrary to the organic act-vesting the judicial power in the courts Hamilton v. Wyoming Territory,* 1 Wyom. Ty, 131.

§ 3100. Where an act provides that an offense shall be punished by imprisonment and amercement at the discretion of the jury, imprisonment is a necessary part of the punishment, and the jury are to determine both the fine and the imprisonment. United States v. Aubrey,* 1 Cr. C. C., 185.

§ 3101. In District of Columbia.- Authority is not given to the corporation of Washington, by any of its charters or the amendments thereof, directly to punish a free person corporally, for violation of its by-laws. They can only impose fines, penalties and forfeitures for the breach of their ordinances, to be recovered as debts. Ex parte Reed,* 4 Cr. C. C., 582. § 3102. On a conviction for bigamy in Washington county, D. C., burning in the hand may be dispensed with. United States v. Jennegen,* 4 Cr. C. C., 118.

835

XXXII. INSANITY.

SUMMARY What persons not liable for their acts, SS 3103, 3116. 3118.- Burden of proof, $ 3104, 3117, 3121.- Reasonable doubt, $3105.- Act must be shown to proceed from diseased condition of mind. § 3106.- Not inferred from insanity of ancestors, 3107.- Not inferred from the commission of a criminal act, nor from the nature of the act, § 3108.- Insane delusion, § 3109.- Peculiarities and delusions prior to the criminal act, § 3110.- Belief that the act was a political necessity, § 3111.- Belief in inspiration, § 3112.- Moral indifference or insensibility to the distinctions between right and wrong, § 3113.- Testimony of experts; question for the jury, §§ 3114, 3119.- Fact of insanity before or after the act. § 3115.- No malice implied from acts of insane person, § 3116.— Insanity not presumed, § 3117.- It is not every kind or degree of insanity that will excuse crime, § 3118.- Delirium tremens, § 3120.- Not presumed that insanity arose from any particular cause, $3121.- Caused by habitual drunkenness, § 3122.- When the fact of intoxication may be considered, § 3123.

§ 3103. If one's mental faculties are so diseased that he does not know what he is doing when he kills another, or does not know that it is wrong, his act is not murder. Guiteau's Case, SS 3124-44. See § 3158.

$3104. Although the prisoner is presumed to be innocent until proved guilt, yet the gosernment is not bound to prove that the prisoner was sane when he did the act. The defen fant must prove himself to have been insane if he relies on that defense. Ibid. See $36)

§3105. If the jury entertain a reasonable doubt as to the killing or as to the responsible condition of the prisoner's mind when he did the act, the prisoner is entitled to its benefit. Ibid.

§ 3166. Whenever partial insanity is relied on as a defense it must appear that the crime charged was the product of the delusion or other morbid condition, and connected with it as effect with cause, and not the result of sane reasoning or natural motives which the party may be capable of, notwithstanding his disorder. Ibid.

§ 3107. It is not allowed to infer insanity in the accused from the mere fact of its existence in his ancestors. Ibid.

$3108. The jury is not warranted in inferring that a man is insane from the mere fact of his committing a crime or from the enormity of the crime, or from the mere apparent absence of an adequate motive for it, for the law assumes that there was a bad motive-that it was prompted by malice — if nothing else appears. ibid.

§ 3109. An insane delusion is an unreasoning and incorrigible belief in the existence of facts which are either impossible absolutely, or at least impossible under the circumstances of the individual. It is never the result of reasoning or reflection, nor can it be dispelled by them. In this respect it differs from an opinion. Ibid.

3110. The only materiality of evidence of a prisoner's peculiarities and delusions during his life previous to the commission of his crime is the probability it may afford of his liability to such disorder of the mind, and the corroboration it may yield to other evidence which may tend directly to show such disorder at the time of the commission of the crime. Ibid.

§ 3111. It is no excuse for a homicide that the prisoner had reasoned himself into the conviction that the killing was a political necessity, or necessary to the predominance of one of the political parties. Such is not an insane delusion. Ibid.

§3112. A man may be insanely convinced that he is inspired by the Almighty to do an act. to a degree that will destroy his responsibility for the act. But he cannot escape responsi bility by baptizing his own spontaneous conceptions and reflections and deliberate resolves with the name of inspiration. And so in Guiteau's Case the jury were instructed that the question for them to determine was whether the idea of killing the president first presented itself to the defendant in the shape of a command or inspiration from the Deity in the manner in which insane delusions of that kind arise; or whether it was a conception of his own, followed out to a resolution to act, and if he thought at all about inspiration, it was simply a speculation or theory, or a theoretical conclusion of his own mind, drawn from the ex ediency or necessity of the act, that his previously conceived ideas were inspired. Ibid.

$3113. Moral indifference or insensibility to the distinctions between right and wrong, resulting from a blunted conscience, a torpid moral sense or depravity of heart, is to be distinguished from mental incapacity to understand these distinctions, and is no excuse for crime. Ibid.

3114. It is for the jury to determine the weight to be given to the testimony of an expert with regard to the sanity or insanity of the prisoner, and the court will not instruct the jury

that the facts stated in the hypothetical question must be true to entitle the answer of the expert to any weight. Ibid.

$3115. An instruction that the fact of the insanity or sanity of the prisoner before or after the date of the crime is not in issue except as collateral to the main fact of sanity or insanity at the date of the crime, and the only evidence as to such main fact is in the testimony of the prisoner himself, his words and acts, and the testimony of experts in answer to hypothetical questions, was refused because it involved a question of fact for the jary. Ibid.

§3116. Where one is so insane that the law holds him irresponsible, it deems him incapable of malice, and no malice will be implied from his acts however atrocious. United States v. McGlue, § 3145-54. See § 3158,

$3117. The accused must be presumed to be sane till his insanity is proved. To excuse him, he must be proved to be insane when he did the act. Ibid. See § 3160.

§ 3118. It is not every kind or degree of insanity that will excuse crime. If the accused understands the nature and consequences of his act, if he knows that it is wrong, and that if he does it he will deserve punishment, he is responsible. If he is under such delusion as not to understand the nature of his act, or if he has not sufficient memory and reason and judgment to know that he is doing wrong, or not sufficient conscience to discern that his act is deserving of punishment, he is not responsible. Ibid. See § 3158.

$3119. Experts are not allowed to give their opinions on the facts of the case when disputed. They must give their opinions on supposed cases. Such opinions are not binding on the jury against their judgment. Ibid.

$3120. If a person suffering under delirium tremens is so far insane as to render him irresponsible, the law does not punish him for any crime he may commit. But if a person commits a crime under the immediate influence of liquor, and while intoxicated, the law does punish him, however mad he may have been. Ibid.

§ 3121. While it is upon the prisoner to prove his insanity, yet the law does not presume that the insanity arose from any particular cause. And if the prosecutor asserts that the prisoner's insanity arose from a certain cause, and that he is, therefore, responsible for his act, it is upon the government to prove the assertion. Ibid. See § 3160.

§ 3122. Insanity, whose remote cause is habitual drunkenness, is an excuse for a homicide committed by the party, while so insane, but not at the time intoxicated or under the influence of liquor. United States v. Drew, § 3155. See $$ 3161, 3164.

$123. Where a statute establishing different degrees of murder requires deliberate premeditation in order to constitute murder in the first degree, it is proper for the jury to inquire into the condition of the defendant as drunk or sober when he committed the act; not upon the ground that drunkenness renders a criminal act less criminal, but as bearing upon the question whether the defendant's mind was capable of that deliberation or premeditation which determines the degree of the crime. Hopt v. People, §§ 3156, 3157.

[NOTES.—See § 3158-3167.]

GUITEAU'S CASE.

(Supreme Court of the District of Columbia: 10 Federal Reporter, 161-189. 1832.) STATEMENT OF FACTS.-Guiteau was indicted for the murder of James A. Garfield, president of the United States. The defense of insanity was interposed.

Charge by Cox, J.

Gentlemen of the Petit Jury: The constitution of the United States provides that "In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed; to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense." These provisions are deemed the indispensable safeguards of life and liberty. They are intended for the protection of the innocent from injustice and oppression. It is only by their faithful observance that guilt or innocence can be fairly ascertained.

$3124. Presumption of innocence.

Every accused person is presumed innocent until the accusation be proved, and until such proof no court dare to prejudge his cause or withhold from him

the protection of this fundamental law. With what difficulty and trial of patience this law has been administered in the present case, you have been daily witnesses. After all, however, it is our consolation that not one of these sacred guaranties has been violated in the person of the accused. If he be guilty, no man deserves their protection less than he does. If he be innocent, no man needs their protection more, and no man's case more clearly proves their beneficence and justice. At length the long chapter of proof is ended; the task of the advocate is done; and the duty now rests with you of determining, with such aid as I can afford you, the issue between public justice and the prisoner at the bar. No one can feel more keenly than I do the grave respon sibility of my duty; and I feel that I can only discharge it by a close adherence to the law as it has been laid down by its highest authorized expounders.

Before proceeding, I wish to interject here a remark upon an episode in the trial pending the last argument. The prisoner has taken repeated occasions to proclaim that public opinion, as evidenced by the press and by his correspondence, is in his favor. As you well know, these declarations could not have been prevented except by resorting to the process of gagging him. Any suggestion that you could be influenced by this lawless babble of the prisoner would have seemed to me simply absurd, and I should have felt that I had almost insulted your intelligence if I had warned you not to regard it. The counsel for the prosecution have been rebuked for allowing these declarations to go to you without contradiction, and in the course of the final argument they felt it necessary to interpose a contradiction to these declarations of the prisoner, and the latter's counsel excepted to the form in which the contradiction was made. For the sole purpose of purging this record of any apparently objectionable matter, I would simply say, here, that nothing that has been said in reference to public sentiment or newspaper opinion, on either side, is to be regarded by you, although I really feel that such an admonition from me is totally unnecessary.

$3125. Definition of murder.

This indictment charges the defendant with having murdered James A. Garfield. It becomes my duty, in the first place, to explain to you the nature of the crime charged. With us, murder is committed where a person of sound memory and discretion unlawfully kills a reasonable creature in being, and in the peace of the United States, with malice aforethought. It must, of course, be proved, first, that the death was caused by the act of the accused. It must be further shown that it was caused with malice aforethought; but this does not mean that the government must prove any special ill-will, hatred, or grudge, on the part of the prisoner, towards the deceased. Whenever a homicide is shown to have been committed without lawful authority and with deliberate intent, it is sufficiently proved to have been done with malice aforethought. And this evidence is not answered and malice is not disproved, by showing that the accused had no personal ill-will against the deceased, but killed him from some other motive, as for purpose of robbery, or by mistaking him for another, or, as alleged in this case, to produce a public benefit. If it could be shown that the killing occurred in the heat of passion and on sudden quarrel, and under provocation from the deceased, then it would appear tha there was no premeditated intent, and consequently no malice aforethought; and this would reduce the crime to manslaughter. But it is hardly necessary to say that there is nothing of that kind in the present case. You will prob ably see that either the defendant is guilty of murder or he is innocent. But,

in order to constitute the crime of murder, the assassin must have a responsibly sane mind. The technical term, "sound memory and discretion," in the old common law definition of murder means this. An irresponsibly insane. man can no more commit murder than a sane man can do so without killing. His condition of mind cannot be separated from the act. If he is laboring under disease of his mental faculties-if that is a proper expression - to such an extent that he does not know what he is doing, or does not know that it is wrong, then he is wanting in that sound memory and discretion which make a part of the definition of murder. In the next place, I instruct you that every defendant is presumed innocent until the accusation against him is established by proof.

§ 3126. Presumption of sanity.

In the next place, notwithstanding this presumption of innocence, it is equally true that a defendant is presumed to be sane and have been so at the time when the crime charged against him was committed; that is to say, the government is not bound, as a part of its proofs, to show, affirmatively, that the defendant was sane. As insanity is the exception, and most men are sane, the law presumes the latter condition of everybody until some reason is shown to believe the contrary. The burden is therefore on the defendant, who sets up insanity as an excuse for crime, to bring forward his proofs, in the first instance, to show that that presumption is a mistake as far as it relates to him. The crime, then, involves three elements, viz.: The killing, malice, and a responsible mind in the murderer.

§ 3127. What is a reasonable doubt.

But after all the evidence is in, if the jury, while bearing in mind both these presumptions that I have mentioned,- i. e., that the defendant is innocent till he is proved guilty, and that he is and was sane, until evidence to the contrary appears, and considering the whole evidence in the case, still entertain what is called a reasonable doubt, on any ground (either as to the killing, or the responsible condition of mind), whether he is guilty of the crime of murder, as it has been explained and defined, then the rule is that the defendant is entitled to the benefit of that doubt and to an acquittal. But here it becomes important to explain to you, in the best way that I can, what is a reasonable doubt. I can hardly venture to give you an exact definition of the terms, for I do not know of any successful attempt to do so. As to questions relating to human affairs, a knowledge of which is derived from testimony, it is impossible to have the same kind of certainty which is created by scientific demonstration. The only certainty you can have is a moral certainty, which depends upon the confidence you have in the integrity of witnesses, and their capacity to know the truth. If, for example, facts not improbable are attested by numerous witnesses who are credible, consistent and uncontradicted, and who had every opportunity of knowing the truth, a reasonable or moral certainty would be inspired by their testimony. In such case, a doubt would be unreasonable, or imaginary, or speculative, which the books say it ought not to be. And it is not a doubt whether the party may not possibly be innocent in the face of strong proof of his guilt, but a sincere doubt whether he has been proved guilty, that is called reasonable.

And even where the testimony is contradictory, so much more credit may be due to one side than the other, that the same result will be produced. On the other hand, the opposing proofs may be so nearly balanced that the jury may justly doubt on which side lies the truth, and in such case the accused